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tv   Book Discussion on Licensed to Lie  CSPAN  August 13, 2014 2:40pm-4:16pm EDT

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with us. they don't have the same idea of us being part of humanity the way they do, let alone does a christian flan fall lan throw pis worry. let's take a look then at the answer. >> in the answer, the jewish machinist is advised to appeal to the united hebrew trades and ask them to intercede for him and bring up charges before the machinists union about this persecution. his attention is also drawn to the fact that there are gentile factories where jews and gentiles work together and get along well with each other. finally, it is noted that people will have to work long and hard
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before this senseless racial hatred can be completely uprooted. >> okay. what do we take away from this little -- it's not the answer itself but sort of a summary of the answer. >> one thing i noticed, tells him to go to the united hebrew trades, and then use them as his help to talk to the machinist union. kind of like they're saying the whole idea of like self-preservation, if they don't want us to be a part of them, fine, we'll do it ourselves. >> don't go to the afl-cio, perhaps, go to -- even though the american federation of labor, its president was a jew for quite a long time, but go to the hebrew trade union. anyone struck by going there instead of somewhere else? we a in a different world, where might jews go? other labor organizations that are not jewish-specific. labor or civil rights organizations. >> probably like synagogue? >> yeah. they don't go to the rabbi. don't go to your religious leader.
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right? maybe a few generations ago, before the labor movement, if jews have a problem and they're turning to jewish protectors, jewish sources for social justice, that might be the rabbi. rabbi fulfilled that role in the community. here there are new organizations which are coming up all the time which are making the rabbi's job perhaps more narrowly construed as a teacher of text and as a judge than elsewhere. okay. good. any last comments on that one. i do want to read one last one. let's look at -- let's take a look at the 1953 one. this is a little bit longer but -- a little later in time but it is one that i like as well. here we have our love sick
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problem. >> worthy mr. editor, i write you this letter for the sake of my parents who are readers of your newspaper. because i know that they will accept your opinion. i have to write in english because my yiddish is not too good. >> by 1950s, perhaps in the next generation, yiddish is not the language that's brought them together, they're b are beginni become more languaenglish in la and culture. >> my problem is not a new one. i'm a young man, american born, raised by religious parents who emigrated from europe. during the past few years i went out with nice, attractive jewish girls but i fell in love with none of them. i wanted for my true love -- or i waited for my true love, but as if for spite, the girl was not jewish. i went out with this girl once an we fell in love. >> okay.
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so here we have again this theme that seems to be coming up again and again from melting pot to "the jazz singer," to here and that will be really a major and growing theme as jews become more comfortable in america and america is more comfortable with jews, and that's intermarriage. for the most part, it is worth noting that most of of these paradigms are jewish men and non-jewish women. there's some gendering of the problem of intermarriage we can talk about a little bit later when we discuss that issue after spring break. but, clearly there seems to be this question of jewish survivalism and intermarriage, what will it mean, will it mean complete assimilation if you get married here, a problem that's still very much talked about in the jewish community. now let's hear about the gentile girl. >> this gentile girl is refined. has good character and many fine qualities. i could write a lot about her. but what good would it do. you yourself know what words can be used by someone deeply in love. i expect that my religious
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parents would oppose my marrying a non-jewish girl, but i can't understand their attitude. >> so here we have what's going to become as the children, grandchildren of the immigrants really are coming to america, a generational shift. we talk about socioeconomic, talk about cultural, talk about religious. generational will be another tension that's very american in the 20th and 21st century, and that is not just jewish, but my old world parents don't understand my american desire for sex, love and rock 'n' roll. >> if they told me they didn't want to see me again or have anything to do with me, it would hurt me because i love my parents. but i would still have hope that in time they would forgive me and we'd be close again.
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>> my favorite part. >> but when i told them about the girl, they wanted me -- they warned me that if i married her they would commit suicide. >> right. that's jewish guilt at its best right there. it's not, rear's really upset with you, jacob, but rather i'm going to throw myself out of the window, you picked a non-jewish girl. that's classic. so now we have this situation, right, where we have -- yhe cant not think about this girl. he's in love. words fail him for how much in love he is. but his parents -- >> knowing my parents, i'm afraid. they say that it would be a terrible shame and heartache and they would have nothing to live for anymore. >> yes. keep going. >> worthy editor, i know that many mixed marriages are unhappy, but i feel i would be happy with this girl. therefore, i ask you to explain to my parents that they must rid themselves of the thoughts and stop talking about suicide.
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even though they are very grieved. i am very disturbed by their talk. this girl is dear to me -- this girl is as dear to me as life itself and i don't know what to do. thank you very much for your answer. >> okay. so here we are. what do you do when you have this break between either the religious and secular within your family, especially if that's broken down between parents and children. do you want me to answer? >> we are of the opinion that you should not marry the non-jewish girl. you should break off the match not only for the sake of your parents, but for your own, too, because you are from two different worlds. >> so here the advice is interesting. this is this socialist sort of progressive, free-thinking newspaper. obviously it is from a different year, different voice. but we saw in some of the earlier pieces we read today that it is okay to be a free thinker, it is okay to shave your beard, it is okay once you discover that you are no longer
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religious, just stop being a cantor and stop -- you are you a morally obligated once you become secular to give up your place in the world. >> what you just just gave, i think once you intermarry maybe that's where you cross the line and i think that's why this editor feels the way he does in saying that intermarriage is maybe where it's no longer okay because that's when you give up your jewishness. >> so one of the problems, the ultimate line of defense has to be marriage because that's when you lose jewish culture as well as jewish religion, you are saying. other thoughts on this? yeah. >> basically, i just -- it's surprising to me just because talking about what the ideals were, it was often like we're just as good as christians, we're able to americanize. then here the answer is we're totally different, we're from two different worlds.
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>> maybe some inkcongruence her? >> going back to the self-preservation, intermarriage can be seen as a pretty dangerous threat to self-preservation, because as your children start marrying christian people, there are no jewish people left in america. >> yes, i think i've heard that before. so there is this idea it is a slippery slope once you intermarry, it is not that you're going to -- youth marry, then all of a sudden you raise kids jewish. no, intermarriage means falling away generation by generation from judaism. this is the concern. i know you know this. we probably all know this but it is worth saying. why can't a few jews intermarry? how big a deal could it possibly be? what about the nature of jewish life in america makes this precarious? >> like if the whole like tight knit culture community, you kind of have to -- if these two start doing it, then a couple that
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know them will start doing it, maybe a kind of domino effect. >> supposedly the domino effect. but you rarely hear christians saying if they intermarry christianity will be lost. what's the issue intermarry, christianity will be lost. what's the issue here? yeah? >> like kind of -- like once you regulate to other jews and if you intermarry, you don't have a jewish wife or husband to keep you in a strict following. if you have a christian wife, you fall away. >> d achl ria? >> well, christians largely make up the u.s., i would say, and jews, even though this is a judaism in america, there is a small number in america. the numbers don't necessarily deplete but they definitely deplete your influence in america. >> demographics is at the heart of this.
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there are jews that don't mind other religions, other religions that don't mind having jews in the family. but the issue is, we're not going to be in trouble. lauren, you had a question. >> he's american-born and yet there are spots from two different worlds. they are not from two different worlds. what is at stake here is something being inherently different that we discussed about before. it has nothing to do with upbringing. >> yeah, there's an idea of culture being there. okay. if you just take a deep breath and allow the calvary to come down, we'll get to you. okay, jacob. >> wouldn't they argue that it really wouldn't matter and your baby would be like sort of a mixed-race baby? you know, wouldn't they say that like even though you're having this intermarriage and you're falling away from this judaism
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it wouldn't matter because your baby would still be jewish? when they are writing about their -- >> but they are not arguing. they are arguing on behalf of others. right? who would they say would do it that way? >> a protestant culture. >> it's not that the jews will reject her or him. she won't be welcome in the synagogue but rather she'll be rejected by the dominant culture. i would also argue that to be rejected in the synagogue, too, this child. tracy and then -- yeah? >> well, i was just thinking that like the jewish in america right now are kind of their own subculture. so if this person intermarries and is surrounded by his wife's christian family, he'll be in a christian family in a christian nation and by that time they would have already lost him. >> the idea to demographics can't live up to this. go ahead. >> even though the editor's opinion seems to be don't
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intermarry and there's that force opposing intermarriage, there seems to be another force that's more towards a simulation and towards intermarriage because the man who is writing the letter, he seems pretty set on wanting to marry the girl because he's not asking the editor, what should i do, should i marry this girl or not but he's asking the editor to tell his parents to get rid of these thoughts and to not feel that way. so it already seems like he's pretty intent on wanting to marry the girl. >> yeah. so the question is, who's the real audience here? is he really writing this letter or making a larger statement? do you want to finish it up at the very end there so we can get a sense? even if your parents -- >> even if your parents stop talking about suicide, you would become a stranger to them and the whole family forever. since you were raised in a religious home, you would not be able to live harmoniously with your gentile family. >> you are from two different worlds because you were raised
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in a religious home. what if someone writes a letter and says i don't believe in any god and i'm a red sox fan and i met a girl who doesn't believe in a god and she's a red sox fan. we're both good, secular americans. would the response be different? yeah? >> so this man expresses interest in maintaining some sort of a relationship with his parents who care about this so the response would be different. he says my grandparents are different as opposed to my parents who i love who are jewish, there's a difference between the two people. >> so you should stay jewish for the loved ones in your family. that becomes the issue? >> at least -- >> according to this? >> yeah. >> okay. >> are there any like remnants of post-war sentiments that would like -- that would push
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the editor to kind of protect jewish culture even more after world war ii? >> yeah. that's a very good point. we don't really know. is the feeling of people convert to the 1920s, it's fine. there's all of those jews back in the old country. after the camps and we realize -- and we'll talk about this later, american jews wake up and realize, we're what is left. do you feel the pressure to stay jewish whether or not it's for loved ones or for just reasons, you don't want to be the last jew, the last generation of jews which really becomes more of an issue in the wake of the holocaust. absolutely. yeah? >> is there a -- obviously jews were -- faced a lot of anti-semitism and were rejected to parts of american society. there were mixed marriages between the christians and jews. what about the children? is it accepted by both? >> i think it's on a spectrum.
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the question is, children of mixed marriages, how are they viewed? they -- there's a lot of literature on this and i think it depends. there are jews who reject aspects of that and jews who don't. very often they find themselves more welcome in nonorthodox families. we see beginning around this time dissent being very popular in american jews and more reformed jews. they say if either parent is ju jewish, the child is jewish. typically, if the mother is jewish, the child is considered jewish, not if the father is jewish. so if you grew up in a religious family but your father was jewish and your mother wasn't, you probably would be more welcome in a reform than you would in a more traditional synagogue. so it depends. and then there are people who say, we'll accept you if you
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convert. we have jews who were raised jewish that still have to convert. drew? >> so it's like in this letter and article, kind of the older generation of jews aren't too keen on intermarriage but what about the nonjewish americans, what do they think about -- >> yeah. there's clearly going to be people on the other side who don't care what religion this person is or whether he's a machinist. he's jewish. that's weird. that's other. and there are also groups like the jews who have questions of keeping that religious tradition together. right? catholics being one of them. it's not that you're jewish, it's that you're not catholic. we don't like him because he's not a northerner, we don't like him because he's not african-american. they are a member of that other group, whatever it is. it is much more common in the
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21st century, your generation as you go out to marry, to have marriages across religious, racial, or culture ral denominational line. but you can still find and probably will know people who will find some tensions there on both sides of the divide. okay. any last questions here while we wrap up? okay. if there are no more questions, first class we're going to look at how these changing ideas both on comfortable or lack of comfort with being an american affects the way you view the question of zianism. originally we had this idea that you this to cut ties with the concept of jews in the other land or the rebuilding of a
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jewish center in palestine in particular. you wanted to focus on being an american and being a jew. as jews feel more comfortable being an american, how does that change? and as the shoes really begin to take hold and they move towards it and push for statehood, how do americans change their ideas on that? please read section 4 next class and bring those relevant documents and we'll talk about that. okay? thanks a lot and i'll see you next class. book tv is normally seen on c-span 2. but while congress is on break, we're going to show you some of those weekend sessions on c-span 3. coming up, sidney powell who has write ina book "license to lie."
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then, former u.s. marshal mike earp and david fisher, inside america's most storied law enforcement agency. they are followed by harvard law professor lawrence tribe on the u.s. supreme court. his book is called uncertain justice, the robert skort and the constitution. in the weeks following the normandy invasion, allied forces used to drive the germans out of the peninsula and begin the liberation of nazi occupied france. tonight at 8:00, author john mcmanus talks about the allies, including the liberation of the important crossroads town of san low. >> bradley's concept is to redouble his efforts to take st.
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lowe which you see in the middle of our map. this is not a new objective to americans. they hoped to see it sooner than this. the reason it's important, and you'll notice by a glance of the map, particularly every road in normandy leads to st. lowe, it's a crossroads town. it's a market town dating back to ancient times. not a big place but kind of a communication and transport tags and market center for norman culture. it had been invaded many times because it was valuable for these reasons. it had been invaded, you know, by romans, by kings, by napoleanic and they had plunder. you know, stuff, domination,
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power, women, whatever. and the americans come in 1944 and don't want any of those things. they want to liberate the town. the most benevolent of the invaders do more damage than arguably all of the others combined. the allied forces bombed on d-day. why? because it's a crossroads and it would be the normal place that they would attack on the beach. this creates ruins and kills french civilians caught in the middle of all of this and as the push for st. lowe leads to more destruction, ultimately leading one u.s. army soldier to say after the battle with sort of awe and sorrow in his voice, we liberated the hell out of this place. that's part of an hour-long
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program with author john mcmanus describing the allied forces in liberating nazi france after the norman normandy invasion. tonight at 8:00 eastern, 5:00 pacific. more on world war ii tomorrow night. at 8:00, life on the battlefield. three army veterans recount their experiences as part of the d-day invasion. at 9:10 p.m., wives and children of soldiers share memories of d-day and fdr's death. and then at 9:50, the invasion of sicily and the italian campaign.
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good afternoon and welcome to the cato institute. my name is tim limplg, director of krchl ato's project on criminal justice. today we want to examine some distressing legal trends that are at work in the criminal law area. our guest speaker today, sidney powell, has just written a new book entitled "license to lie: exposing corruption in the department of justice" and the book recounts several cases in which ambitious prosecutors used illegal and unethical tactics to win their cases. now, before we get to our panel of experts, i want to take just a minute or two to lay something of a foundation for the discussion that's going to follow. but before i do that, let me ask those of you who came with cell phones, if you take a moment now to quickly double-check and make sure that they are turned off as a courtesy to our speakers. that includes our panelists.
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>> yes. >> okay. thank you. the first point that i think needs to be understood is that there has been incredible growth in the federal criminal system over the past 30 years. in 1980, there were about 1500 federal prosecutors. today, there are close to 8,000. second, there's also been an explosion in the number of federal crimes that are on the books. we know there are about 4,000 federal statutes on the books right now. but when you take into account all of the federal regulations that are churned out by the regulatory agencies, we're talking about tens of thousands of more regulations that can be enforced through our criminal system. i thought there was a telling moment at the supreme court just a few years ago, a representative from the department of justice was before the justices and he was explaining the scope of just one
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of these federal statutes and as he was explaining the scope, he was interrupted by one of the justices. i think it was justice steven briar and steven briar said just a second. i think there's about 200 million americans in the workplace and according to your definition of the honest services criminal statute, about 150 million americans fall on the wrong side of that line. and this was a point where the attorney from the solicitor general's office kind of hemmed and hawed. now, consider that just for a moment. in the eyes of the federal government, we have 150 million americans that they consider to be criminals. and that's just one of these federal criminal statutes. as i said, there are thousands more. the spider web of regulations is now so vast that it's really hard for an ordinary citizen to
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go about their lives without breaking some rule or regulation. you know, this is just not the same america that we grew up with. a lot of us in this room i think can remember an expression when we were growing up. it said something like, let's not make a federal case out of it. but that expression is really losing its force given the growth of our federal criminal code. now, we also have to worry about situations where people have actually not violated any one of these rules and regulations but have nevertheless been targeted by, let's say, an unethical federal prosecutor. the lives of these people are turned upside down. their businesses fail. their families are shattered. and their life savings ends up going to attorneys and law firms that are trying to defend them. as a matter of fact, their own attorneys often advise them to plead guilty even when they have met with their client and are convinced that they are innocent. a lot of people say, how can
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that be? why would that happen? these attorneys will argue that the alternative is even worse. it's too risky. they were talking about5+7ñ come bankruptcy if you don't plead guilty early in the process because the case will drag on. more money going to the attorneys. and even a longer jail sentence if the jurypb chooses to believ the plrosecutor rather than ther version of events. so these are some of the problems that our panel will be addressing along with some specific cases. our format is going to be straightforward. our guest author is going to go first and speak on the thesis of her book. i will then introduce our guest commentators and after their remarks we'll open it up and take your questions for about 15 minutes before we adjourn for a luncheon upstairs. okay. sidney powell searchrved in the department of justice for ten years under u.s. attorneys appointed by both political parties. during her career in the
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department, she taught courses on criminal trials and appeals to other prosecutors at the attorney general's advocacy institute. she has been the lead counsel in more than 500 appeals in the federal courts and for the past 20 years she's been in private practice, representing clients ranging from federal judges to international corporations. she's been repeatedly rated by her peers as one of the best lawyers in america. so she is well-qualified to discuss prosecutorial ethics. so would you please welcome the author of "license to lie," sidney powell. [ applause ] >> thank you all very much. thank you, tim. and i want to thank the cato institute for hosting this event. it's very much appreciated. and i thank judge kozinski for joining us and also ron weich. i think i'm going to start with the forward to the book. it's written by one of our
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panelists, judge kozinski was kind enough to address that for me. it's fundamental to the fairness of our legal system. the main premise underlying the book is that prosecutors have an ethical and legal and constitutional obligation to disclose evidence that is favorable to the defense. there are legal reasons for it. the supreme court held in brady versus maryland that it's a constitutional obligation fundamental to due process. and then, as a practical matter, prosecutors have all of the cards. they are usually the -- or their representatives, the agents, the police officers, whoever, are the first people on the scene, if there is an immediate crime or they are the ones who have conducted an investigation into allegations to begin with or put together all the pieces to charge a crime. they have control of the evidence. they have control of the forensics, they have control of the expert witnesses and in the
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cases discussed in the book, they have even more control than that. one of my challenges today will be to talk to you about the book without spoiling any of it for you because i do want all of you to read it. it's written like a legal thriller. i want people to be able to read it who are not attorneys and for attorneys also to find it interesting and be held by it so you can continue reading all of it. but it is all true. it contains real transcript excerpts. one person recently asked me if i had embellished. he said he was giving me about 10% leeway to embellish for the sake of, you know, making it interesting. and i said, i hate to tell you, actually, i toned it down. it's not embellished. so with that in mind, there are a number of things from the book that i will share with you.
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robert h. jackson was one of the supreme court justices. and as attorney general, he gave a speech on april 1, 1940, that has been enshrined in legal history. he talked about this special role of a federal prosecutor and how important it is for that prosecutor to seek justice and not convictions he explained that it is best, as prosecutor, as one of the most magnificent forces in our society but he has complete control over what can happen to an individual and such broad discretion and a prosecutor can indict someone. he can have the case processed quietly and secretly or he can expose it all to the public and humiliate and degrade the person as much as possible through the process. he has control over where the person goes to prison.
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to a large extent, the government only likes to say that bureau of prisons has input. that's not it at all. the government has a lot of input and as discussed in the book that's true. but yet there's no overriding supervision of prosecutors. you'll see that throughout the book, also. their discretion is unbounded. we like to think of the grand jury system of one being that protects citizens but it doesn't. grand juries are virtually a rubber stamp for prosecutors. there's hardly a prosecutor in the country who couldn't getnn6 indictment against a potato out of a grand jury if that's what they wanted to do. or get a casyk no billed if that's what they want. so the checks and balances need a serious revision. it's also important for federal judges to pay very close
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attention to trials. it used to be, i think, in my experience, under ten different states in three districts across the country over a period of ten years, it used to be that judges could trust the prosecutors to tell them what the law was and to get the facts straight. no u.s. attorney i ever worked with would have tolerated for two seconds the behavior that i saw that caused me to write the book. they all were adamant that we do it right, that we seek justice, that we be fair and that we carefully exercise our discretion to prosecute only cases that we had all of the evidence and were sure the person was guilty. we didn't have time to go or interest in going to look to find something to pin on some one. that was not our job. no u.s. attorney i ever worked with believed that was our job. and we didn't stack counts of
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indictments, either. we would indict on one, two, three, maybe four offenses assuming we had the evidence racked up to prove all of those beyond a reasonable doubt with no question in our minds that that is what should happen in the case. and we produced evidence favorable to the defense that the supreme court called brady evidence. that was our job. i have stood in the united states court of appeals for the fifth circuit and confessed error when the trial lawyers got something wrong, i would tell the fifth circuit, we screwed that up. in fact, if you run through the west law system, the word botched, you will find a quote in a footnote of a decision by irving goldberg where he quotes me as explaining that the dea agents botched it. i think that's the only time that the word appears in west law and the quote was accurate. i haven't run that search in a while. maybe i should do it again to see if anybody else has used it. but it's in there.
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lots of people want to know why i wrote the book and why i wrote the book now. the answer to the first question is, i just could not stand what i had seen. it broke my heart. i have practiced before the fifth circuit for more than 30 years. i'm not going to say how many more. my youthful counsel ten nans that alone. so i'm going to keep that secret. but throughout my practice, i have bragged on and applauded and loved the fifth circuit. for it would have been given the repeated chances i gave it to correct the egregious errors in this case and not to get it right was just more than i could stand. and then when the bar associations for these respective lawyers also failed to do anything about it, i felt
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like i had to speak up. i know i'm not the only lawyer that has seen this kind of injustice. as judge koz sin ski said in united states versus olson, there's it's a significant problem. it affects the fundamental fairness of all of our proceedings and if the prosecutors can do what they did to the people discussed in this book who are more merrill lynch executives, one was a united states senator, others were business executives, all of whom had led stellar lives, to the best of everyone's knowledge, contributed to charities, done everything right and believed in the system, to have prosecutors literally make up crimes against them and then be able to push those through the system to conviction and imprisonment and
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have federal district judges in houston and then the fifth circuit court of appeals not get it right was simply heartbreaking to me. so that is why hi to write the book. i knew it had to be done by somebody with some credibility. defendants can tell you about all of the injustices they have suffered and everybody goes, oh, well, he was a convicted felon. so i just felt it was time that some lawyer stand up and speak out. when i did it, i had no idea what the reception would be. i didn't know whether anybody would pay the slightest bit of attention or not. it turns out, people are paying attention and so i thank each of you for being here to pay that attention to this issue because it is so important and there but for the grace of god go any one of us. if they can do what they did to these people as brendan sullivan has said to united states senator ted stevens, to four
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merrill lynch executives in houston and dallas, they can do it to anyone. the reason i wrote it now is because we have given the legal system every chance to work and it failed to do so. and we also gave the bar associations every chance to do something about it vis-a-vis the lawyers and the bar associations did nothing. the texas bar bounced the grievance we filed against the texas lawyer like a superball. i mean, it practically came back by return mail even though it was written by bill, the co-author of the law of lawyering and considered one of the top three legal ethics experts in the country. it was a 30-page grievance with cry tagss to ethical rules and cases and it showed a grievable
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offense and the fifth circuit opinion which said it didn't matter. so when the texas bar bounced that, i actually thought about sending them my law license. i haven't done that because a number of friends urge me to continue practicing, which i'm not sure i can do but i'm still working on that possibility. and then we also filed with the new york bargains andrew÷kr wet katherine rumblar. the new york bar, weisman at the time was director of the fbi. the department of justice was defending him against the ethical charges. they kept it for about 14 months and then without giving us notice, the new york bar punted
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it to the office of professional responsibility within the department of justice. yes, you heard that right. the department of justice was defending andrew wise man and the new york bar punted it to the department of justice to decide. well, you can pretty much figure out how the department of justice decided that one. in less than a week, the office of professional responsibility ironically named within the department of justice now ironically named dismissed the grievance. so i finally sat down, i said, okay, you've either got to put up or shut up. so i decided to write the book. that's a long explanation of why and when i wrote the book but that is the fundamental story. the book tells the story of any number of high-profile prosecutions. it tells it as a human story because i also want everyone,
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including judges, to understand the human toll it takes when prosecutors violate their oath, the constitution, and the rules of ethics. so there sa very human story that runs throughout the book of my client in particular, some of ted stevens and some of one of the prosecutors, maybe more of the prosecutors than just one. it tells a story of the arthur anderson debacle. most everyone thought arthur anderson was horribly guilty. i also have to confess that as soon as i started hearing about the enron disaster, i knew the ramifications of people across the country, millions of people lost a lot of money. some people lost all their savings. it was horrible. it was an outrage. and most of us, at least from everything that was reported in the press, assumed that everybody that had anything to do with enron was guilty.
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i was one of those. until i dug into the record of the arthur anderson case when arthur anderson asked me to consult when their petition for rehearing was due, another -- the reply brief was due in the circuit. they had already filed their opening brief but decided to consult additional counsel in preparation for their reply brief. that's when i got involved. i think we had 14 or 30 days to get the reply. they had a mega staff to divide it up and divide into the mega record at the time. but it didn't take me long to look at it to wonder why the indictment charged what it charged. the actual offense against anderson was alleged as witness tampering, which requires an element that i couldn't figure out how they were going to prove. and then when i read the jury
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instructions, they had altered the -- the prosecutors had persuaded the district court judge in houston to alter the patterned jury instructions. patterned instructions are approved for every circuit for many criminal offenses. if you use the pattern instruction, it's going to be affirmed on appeal. it's already been covered. when judges deviate from the pattern instruction, i mean, that alone raises any number of red flags. there are rarely a reason to do that. but here i think we'they persua the court to do that. i just knew there was no way that anderson should are been convicted. the jury was out for ten days before they returned a verdict of conviction. the company arthur anderson was destroyed immediately upon indictment. they represented 2300 publicly traded companies. they had 85,000 employees
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worldwide. so 85,000 jobs were destroyed. the indictment had to be sealed for a week so the s.e.c. could work behind the scenes to avoid upheaval in the markets. and then once the case went to the fifth circuit, the fifth circuit affirmed without a problem, affirmed the conviction. finally, the supreme court took the case, actually took it pretty quickly, by all standards, and reversed it 9-0 because anderson did not have fair warning that its conduct was criminal. witness tampering was not the appropriate statute to use and their conduct was not criminal at the time and the jury instructions, justice rehnquist wrote for the unanimous court, he said it was shocking how little culpability the instructions required. they had removed all elements of criminal intent from the jury
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instructions. the prosecutor primarily responsible for the arthur anderson indictment and conviction is now the head of the criminal division of our department of justice. her name is leslie caldwell. the co-prosecutor in the case, andrew weissman became deputy director of the fbi. he went back on his days from the enron task force, after convicting anderson, they then turned their sights to the merrill lynch executives on wall street. they wanted to send a message to wall street. they viewed new york bankers as wise guys on wall street, nothing better than mobsters in suits. nicer suits, maybe. whatever. but that was the basic attitude. it was to bring down merrill lynch or the merrill lynch
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executives. the destruction of anderson gave them incredible power when they went to any other organization because merrill, for example, knew that if merrill did not cooperate fully with the prosecution, merrill would receive the death penalty that arthur anderson had just suffered. so merrill entered into the most egregious nonprosecution agreement i have ever seen. they agreed that their employees would say nothing publicly disand agreed at all from the task force view of the facts of the case. they agreed that if the task force wanted to interview a single merrill lynch employee, a task force attorney could be present. the department of justice task force installed an overseer within merrill lynch who even reviewed the bills from the attorneys so we had to be
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careful what we were working on so as not to let the government know what that was. they named over 100 people as unindicted co-conspirators in the enron litigation writ large which meant that everyone had to lawyer up. if their lawyers were smart at all, they insisted that their clients plead the fifth amendment because if you didn't and you talked and said anything that disagreed with the government's view of the case, you were subject to indictment for perjury and obstruction of justice. they reminded any potential witness of that threat daily. some witnesses got calls during enron-related trials as many as three times a day reminding them that they faced indictment if they got on the witness stand and testified inconsistent with the government's views of the facts.
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so the enron task force prosecutors, leslie, matthew, shut down any action says by the merrill lynch defendants to any defense witness. in fact, our own marilyn house counsel, merrill lynch in-house counsel was threatened with indictment after she testified in the grand jury her status was changed from subject to target of the investigation. so even she, when she took the witness stand for the defense, which the lawyers didn't know she was going to do until the last minute, was terrified. mr. weissman sat directly in front of her taking notes the entire time she testified and they didn't give us any of the brady material or evidence favorable to the defense that the constitution required we be given in fact, they told the
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court repeatedly there was no brady in this case. they were like dear deer in the headlights. there were witnesses that cooperated with the prosecution under plea agreements. their witnesses were people who actually stole money within enron. they all testified for the government, against people who had not taken any money. in fact, as the defendants were sent to prison, he said, i realized you were just doing your jobs. the merrill lynch defendants did not take a penny from anyone. merrill lynch made $775,000 on the transaction. the enron group made 53 million on the transaction. no one lost any money and there were no material misstatements
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to the market that would qualify as a securities fraud prosecution. so instead they indicted the merrill defendants under the honest theory of fraud which alleged that the merrill lynch defendants had conspired with andrew fastow. and they could not get that indictment dismissed. did they take any money from anyone? no. that's traditional fraud. in fact, fraud really means stealing. it falls under the ten commandments but it's gotten more complicated than that. the indictment was something that i'd never seen before. i did extensive research on it. i could not find a single case
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in the country from any state or federal court that served as precedent for making the conduct alleged in this case a criminal offense much less a federal criminal offense. there wasn't one. no problem, send them off to prison. request for bill of particulars to tell us more about what the crime is we're supposed to have committed, denied. when the fifth circuit got our request for bail pending appeal, the government argued that there was no substantial issue for appeal. never mind everything was wrong in the case from the indictment through the jury instructions, also. in fact, i've never seen so many issues in a criminal case as existed in the merrill lynch enron case. it was going to be hard to condense that into something, you know, 50 to 100 pages for the fifth circuit to decide. usually in a criminal case
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you're lucky if there are one or two good issues that might warrant reversal. we had so many in this case we couldn't begin to brief them all. the fifth circuit denied bail pending appeal. the fifth circuit judge denied pending appeal. so the executives had to report to prison, voluntary surrender. the judge did allow them to go to the prison themselves as opposed to having them hauled from the courtroom in chains that day, which is what the government asked for while it also asked for 24 years in prison for them. he gave them three to four years each and allowed them to volume l lun tearily report. bail was denied. i even saw a rehearing because i couldn't believe the fifth circuit wasn't going to grant them bail pending appeal.
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they denied rehearing, also. six years later, fast forward, the ted stevens case has come along. judge emmit sullivan, very different than the judge we had in the enron case, actually questioned the government when it said there was no brady. he started requiring them to produce different parts of their investigatory materials and grand jury reports and each time they had to produce something, it showed, ah, we should have been given that before. this is favorable to the defense to the point that sullivan made it clear, he was going to dismiss the indictment against ted stevens. at that point we had a new attorney general. his name was eric holder. he said he was going to clean up the department of justice. so he came in, i think it was six weeks after he was appointed, he came in and
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dismissed the indictment against senator stevens in the interest of justice. i thought hallelujah, we're going to make some real progress here and now would be a good time to talk to the department of justice to let them know what all has come to light in our case because we had finally gotten the notes of thousands of hours of interviews of andrew fastow and he had said there was actually no crime in the merrill lynch case either. even he agreed that there was no guarantee from enron that would have made the transaction illegal. he said that didn't happen. they proved their case by the hearsay evidence by fastow. he said one thing to his subordinates and one thing to
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the defendants at merrill lynch. we obama knew what he told us in a five-minute conversation. so we thought that was rather significant development. he was the government's star witness against skilling and lay and he was supposedly the guarantor that made this transaction illegal from the get-go. we got nowhere with that either. we did come talk to the department of justice. we were met with hostility and nobody ever responded to our allegations on the merits. so we're back in the district court. the fifth circuit finally reversed the convictions after my client had spent a year in prison. they reversed 12 out of 14 counts of conviction against all of the merrill defendants. they acquitted young bill fuse,
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32-year-old assistant in merrill lynch who had participated in the deal, acquitted him completely. he had served eight months in a maximum security transfer facility. in oklahoma 600 miles from his young family. our other defendants were not given light duty either. none of them were in prison camps, which i assure you, most are not anything like you would think of a camps being. they were at least in a higher level security than that with each level of prison security, frankly, comes additional threats to your own personal safety because it's the least violent criminals that are in the lowest security facilities and the more violent as you go up the ladder. my client shared a cell with 13 people for the first part of his sentence.
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one of those people was set on fire in the middle of the night as he slept in his bunk. there are other prison stories that are not in the book that i won't use time on today but there was a lot -- a lot that they had to deal with. fortunately, my client came out fairly well. he is a very affable guy. there's a very poignant story in the book of some things that happened in his life before he went to prison that basically left him with an attitude of gratitude so he went to prison with the idea of helping other people, teaching people to read, which he did, teaching other inmates how to understand personal finances. he even had his wife send him materials to explain to them how to open a bank account when they got out, how to manage basic household needs and budgeting,
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things like that. he said that the prison system itself is a farce when it comes to any sort of rehabilitation or education for people. and there's another story, another heartwarming story from his prison that i will leave to your reading in the book, also. after they were released from prison and after judge sullivan had dismissed the stevens' indictment, a third set of prosecutors finally produced to us evidence that accidently they -- they didn't really know -- they gave me a disk. they didn't know what was on the disk. i mean, they knew that there were documents on the disk, obviously, but they didn't realize the significance of those documents. they gave me a disk that contained yellow highlighting by the original prosecutors of evidence that was favorable to the defense that they had personally identified as
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favorable to the defense before the first trial. and they had omitted the key words and information from that when they gave us a very limited summary of what the actual participants in the transaction had said. one of the statements was just flat out false and misleading in the summary that katherine rumler, who became chief white house counsel and only left recently, had signed. she had said that jeff mcmahon, treasure of enron at the time, had also given a guarantee to the merrill lynch defendants and he said that he did not recall, in the little four-line summary that they gave us, of his statements. turns out, there were multiple pages of his statements to multiple federal agents that consistently said that mcmchl
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ahon said there was no guarantee. and that mcmchl ahon was participating in the fastow phone calls and fastow did not give a guarantee either. so here we have evidence that both purported guarantors, the only alleged crime in the case, both alleged guarantors who despised each other agreed long ago, before the case was even indicted, that there was never a guarantee made to the merrill lynch executives in this case. so four merrill lynch executives spent a year many prison on an indictment that made up a crime while the prosecutors had yellow highlighted and hid the evidence from the first-hand participants that said there was no criminal activity in this case at all. and those prosecutors became
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chief white house counsel, general counsel deputy director of the fbi, attorney general for the criminal division under the prior administration who rushed to indict senator ted stevens and unseated the longest serving republican in the united states senate, only to have that indictment dismissed after stevens had lost his senate seat for the same kind of withholding evidence that happened in the merrill lynch/enron case. what can we do about this? the good news is, there are things that can be done and i will run through them quickly. i try to remind everyone as i speak on radio, we even have to remind ourselves that there is a presumption of innocence. everyone is entitled to a presumption of innocence. we all think once somebody is indicted, of course they did it. a grand jury found probable cause that they did it. we just think somebody indicted, they ought to be guilty. we've got to remind ourselves, i
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have to remind myself, everyone is entitled to the presumption of innocence and the government must be held to its burden of proof to prove guilt beyond a reasonable doubt. competent evidence and they must be held accountable when they do not produce evidence favorable to the defense. so what can we do in that regard? judges can enter what's called brady compliance orders, requiring the government to produce that evidence on a set schedule so that defendants have it in time to prepare for their defense, which is what the supreme court requires. judges are now starting to do that more often. judge emmit sullivan started doing that after the report of the investigation he required came out. and it was identified that because he had not entered a specific order, the prosecutors could not be prosecuted for con test. they could have been disbarred so the bar association's must be
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commanded to step up and deal with that. i'm hoping that there is a public outcry in response to the book to urge bar associations to be more responsible and i know that there is going to be legislation introduced soon called the prosecutorial integrity act that should receive bipartisan support. there was an effort upon the publication of the report on the stevens' investigation that judge sullivan had ordered, a bipartisan effort ordered by a senator in alaska. it received support across the board. the aclu, the national chamber of commerce, the national association of defense lawyers, the american bar association, every state bar association i read about, everyone, every major legal organization in the country supported the fairness and disclosure of evidence act. the only group that i know of that opposed it were the federal
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prosecutors and are now ironically named department of justice. yes. so there's going to be an effort to introduce the prosecutorial integrity act which carries many of the same requirements of production on the government and attach penalties for their failure to produce the fairness and disclosure of evidence act would require. so i'm going to urge everyone to support that legislation and that means really getting more active about contacting your congressman and senators and urging them to do something about it. and if judges will start entering brady compliance orders and start reversing criminal convictions, which i guess is what it will take to get tlehei attention, referring things to the bar association with a letter demanding action on it and citizens start serving on juries with an idea of a single
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juror can stop and unjust criminal conviction. and you can tell if a judge is running a railroad in his courtroom or not. some run railroads. you'll see the difference in houston with judge sullivan in the stevens' case in the book and it is very distinct and unmistakable, the difference two judicial attitudes can make. and then we have judges like judge kozinski who was willing to reverse a criminal conviction and hold them accountable for their act. it's all about fundamental fairness and holding prosecutors accountable for their misconduct. it wouldn't take long to clean up the system if everyone did their part. thank you. [ applause ] >> thank you, sidney. we're now going to turn to our
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guest commentators and our first commentator is also well-qualified to address the subject of prosecutorial misconduct because over the course of his career, he has served in the executive branch, the legislative branch, private practice and now academia. he's presently the dean of the university of baltimore school of law. before that he was appointed by president obama to a high-ranking position within the department of justice. he served as the assistant attorney general under eric holder for legislative affairs. in that role he represented the justice department on all legislative and oversight matters before the congress. earlier in his career, he served as the chief counsel to senator harry reid and senator ted kennedy. he also brings prosecutorial experience to our discussion.
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so please welcome mr. ron weich. [ applause ] >> i'd like to thank tim for that introduction and thank the cato institute for inviting me to be here. these are very important issues that sidney has raised in her book and i'm very pleased to be part of the discussion. these are issues that should be aired. i want to start by commending sidney powell for writing this book. i said to her that there are lots of lawyers who see injustice in matters that they've handled and they deal with it by going out and having a drink and what sidney has done in writing this book is taking her passion for justice and putting it out there for the world to see and to judge and it requires great discipline to write a book like this. it's a very detailed book, 400 pages, and she deserves great
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credit for bringing her concerns to a wider audience. having said that, i want to say that my reaction to the book is somewhat mixed. i think that there are overall themes in the book that i agree with. and i'll speak about those and i think, as i say, sidney deserves great credit for highlighting those themes and publicizing the problems in the criminal justice system. at the same time, i find her indictment, if you will, of the prosecutors in the case that she handled, the prosecution of mr. brown, to be ultimately unconvincing. and i'll explain why i reached that conclusion. let me speak first about the overall themes that i very much agree with. sidney highlights in the book and in her opening remarks here the tremendous power of prosecutors.
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the frightingly ability to ruin some's life just as jackson wrote about the obligation of obligation of prosecutor toss use that power wisely and mindful of the fact that a prosecutor's obligation is not to convict, but to do justice. that kind of sentiment is expressed various engravings, and sometimes those are just words and there are abuses. in general, i think that prosecutors, prosecutors i've seen in my career both at the state and federal level are generally honorable. i think it's possible to paint with too broad a brush in understanding this problem. to be sure, there are abuses, they have been found and they have been documented, but in my experience, many, many prosecutors are honorable men
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and women who seek to do justice in the public interests. nobody is getting rich being a prosecutor. they're doing it because they believe it's the right thing to do, and it's commendable work for those who do it well. that said, the power of a prosecutor is scary even if not abused. just the judgments that individual prosecutors get to make. i graduated from law school as a very young man. i was about 24 years old, and i was in the manhattan d.a.'s office. i had the ability, because new york state has a system of -- at the time had a system of predicate felony laws basically mandatory minimum sentencing laws that enabled me to decide whether someone was going to go to prison for a period of time, because i could refuse to allow a plea to a lower grade offense, and i was disturbed by that. i had the power, and i didn't think i should have the power. i had supervisors and colleagues
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who i could talk to and rely upon, but ultimately i felt i had too much power. as i went no in the district attorney's office and gained more perspective, i was ultimately disturbed to leave the office and go into more of a policy role. later in my career i found myself at the justice department and again i saw prosecutors who i felt had too much power. some of them were overzealous in exercising that power. what i think needs to happen are absolutely on target. there need to be more checks. internal checks and external checks on individual prosecutors' exercise of discretion. nobody should have unilateral power of essentially life or death in individuals. a second theme that i very much agree with sydney highlights the issue of unduly lengthy sentences. in the cases that she talks about are white collar criminal case, but the problem extends
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throughout the criminal justice system. drug cases, child pornography cases, where there's been such a hysteria about the unfortunate conduct that people go to prison for decades for viewing certain material, and in these white collar cases, individuals who suffer the worst punishment in the world the day they lose their job and are forced to stand in front of a court and face the consequences. those people are then sent to prison for years, even decades, and.there are people that receive a 24-year sentence. when i was in the justice department, i received the press releases in individual cases, any significant cases, and i came to realize that every single sentence i saw was about three times too long. a 30-year sentences should have been ten years, 9-year sending should have been three, and people who went to prison for a
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couple years probably didn't need to be there at all. so that's disturbing. and the prosecutorial power in sentencing is the issue of mandatory sentencing, which gives prosecutors more power over individuals, that judges don't have the power to check. so efforts to fight mandatory sentencing, and i'm very proud of my wife who is hear who leads families against mandatory minimums, and julia is leading an effort that's getting some traction in congress and at the justice department to deal with some of those abuses. finally a theme that i think is so important is prison conditions. sydney's client had a fairly tough time in the year that he was in prison and other defendants -- other prisoners face this, and we think -- you know, everyone think the federal prison camps, club fed, it's really not like that. the conditions and the medical
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care in any prison, including federal prisons are deplorable and that should be addressed. so having said all those good things about the book, let me find why i think sydney's single points somewhat unconvincing. she tells two stories, two cases kind of parallel to each other. one is the ted stevens' prosecution, where there is no doubt it is well documented widely accepted that there was prosecutorial abuse that led to a gross miscarriage of justice. the presiding judge in the trial emmitt sullivan found that, he ultimately appointed a lawyer to do a comprehensive independent review that documented every aspect of the misconduct. as sydney said, attorney general holder ultimately dismissed the prosecution, dismissed the indictment on his own. sydney in the book questions whether attorney general holder did that only because he knew that judge sullivan was going to do it, so why not?
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i can tell you i joined the justice department in my role several weeks after attorney general holder made that decision. i heard him talk about it and saw the effect in the department. it was very, very profound for the attorney general of the united states to dismiss that prosecution, even if judge sullivan was going to do it on his own, for the department itself to take that step sent an important message to prosecutors. this was then a very rigorous, very serious effort to reorient prosecutors about their obligations to expos exculpatory so-called brady material. that's one story. the second story that sydney tells is about her client, jim brown, a merrill lynch executive involved in deals with the enron corporation. sydney alleges very serious sweeping prosecutorial misconduct in that case. i don't in any way question her sincerity and she lays out her argument in great detail in the
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book, but unlike the stevens kay where the adjudication found prosecutorial misconduct in the brown case, the adjudication found exactly the opposite. that is the federal district court judge presiding over the case rejected the argument. the fifth circuit, which i must say had, as sydney points out dismissed many of the counts, nonetheless rejected the claims of prosecutorial conduct. that judgment was then appealed to the fifth circuit where a panel of independent judges rejected it. the supreme court denied cert, and think as sydney says three separate state bar associations decline to find that these prosecutors had engaged in misconduct. i don't know what to say we have serious allegations in one side in the dispute. as i read the book, i kept
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wanting to ask the other side what's your side of the story? we didn't get a lot of that, but we know there was an adjudication that rejected the allegations. it's hard in these complex, the white-collar cases, involve complex financial transactions, and then the procedural history of the case over many years becomes complex. it's hard to judge it independently, but i know we don't only one side of the story. there's another aspect of the book that is of concern to me. the style that sydney uses, as she recounts the litigation, she essentially provides transcripts of the argument, especially in the district court, and to some extent if the fifth circuit, and tells what you both sides are saying, but she interrupts to kind of ridicule the arguments and the individuals making the arguments on the other site. she says kathy remler was seething, struck like a viper,
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matt friedrich was smug, could barely suppress his grin. a younger prosecutor named stock exchange she is describes as really stupid beyond hope. she talks about the justice department -- was that spencer? >> a supervisor named rita dplafen had -- which i thought was a low blow to comment on an adversary's clothing. she rid consumes the judge who presided, she never saw a judge work so hard in the face of contrary law to make sure the government would win and at another point she calls the judge clueless. as for the ate court she questions whether they might have been influenced by the people who helped them become confirmed or whether they were intimidated by the high rank the the challenge.
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of course she levels they very serious allegations that there was not just, you know, questionable judgment by the prosecutors, but deliberate suppression of evidence and subbo subborn suborning of perjury. kathy remler was a colleague of mine. i was a colleague of hers in the justice department and some when she became white house counsel. she's an aggressive person. she's an ambitious person as i am, as many of us are in washington. she is fundamentally an honorable person, and i don't believe she's capable of the conduct that's been alleged here. i don't know the other prosecutors as well, but again i fall back on adjudication. that's our system, when they disputes are parened, impartial federal judges with the protection of lifetime tenure
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review them. sydney finds the review inadequate or questions motives of people making that review. i still believe in our system that resolves these disputes in that way. in the end i come back to applauding sydney. i think it's a contribution to the -- i'm not persuaded by the central thesis. i reject specific allegations about my former colleague and others. i reject sort of wholesale allegations about corruption at the justice department, but i appreciate sydney giving us an opportunity to talk about these important issues. thank you. on second commentator has the chief judge for the 9th circuit court of appeals since 2007. he is well known for many
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things. his intellect, his very sharp writing style, he magic tricks, his accent and his good sense of humor. >> and good looks. >> yeah, and good looks. >> good looks. i can't go through the whole list, but best of all, known for his strong sense of justice. that comes through in his written opinions. his written opinions are so per swaktive and well constructed they often reverberate beyond his jurisdiction says last decent he shook up the world with the case of united nations versus olson. he said i wish i could say that the prosecutor's unprofessionalism is the exception, the propensity for
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shortcuts and indifference to the ethical and legal responsibilities is a rare blemish to the corps of prosecutors around the country, but that would not be true. brady violations have reached epidemic proportions in recent years. just with that one paragraph, the judge started a national conversation on the subject of prosecutorial misconduct. editorial pages quoted the judge and started talking about, do we have a prove in this country with prosecutorial ethics? he hayes spoken here at cato many times, and we're pleased to have him back. >> thank you. before i start on this subject, i do want to tell another publication, and that is a piece that my law clerk misha and i wrote for cato, and i think tim
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you were the editor of the book. it's called "you too" are probably a federal criminal." it picks up on tim's point, which is that in fact there are so many laws out there, and there are many of them are so ambiguouses chances are very good in something you have done in your life, if the federal prosecutors knew about it, and they can find out a lot of things nowadays using electronic data searches and so on, if they wanted to focus on you, they could probably get you and have you behind bars in very little time. so this is a danger. i think sydney, and also acknowledges that point of very strong power of prosecutors, and for them to take this large body of law, this somewhat amorphous
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body of law that is a serious danger. let me talk a little bit about brady and other kinds of prosecutorial misconduct. i think it's important. i think we have both lawyers and nonlawyers in the audience to understand the significance of brady. brady is a decision by the united states supreme court, and the supreme court has come up with many decisions, miranda, brady, in terms of procedural protections. people sort of think they're all equal. i would suggest that brady is uniquely important, because brady, unlike miranda, where the defendant may confession, and then he wants it suppressed, but, you know, he probably did it because he confessed to it,
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it's a procedural rule, but brady truly protects the innocent. but if the government has evidence in its possession, if put before a jury would raise a reasonable doubt. the reason the government has the evidence is they have such an advantage in gathering evidence. they know about it long before the defendant knows that anything is going on. they have access to witnesses. and once -- if it's by the time the defendant finds out about it, that there's an investigation going on, the crime scene has been cleared. whatever was there to pick up is in the government's possession, so it's extremely important, it
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is vital for the government in it has evident that's exculpatory, to give it up and make it a fair fight. nobody is saying that people should be allowed to go free who are guilty, but surely if the government knows of a piece of evidence that contradicts what their star witness says, it's only fair, only appropriate to not send somebody to prison without having the jury consider both sides. we believe in juries, wes believe in 12 people acting and thinking together, considering the evidence, and if they find somebody guilty beyond a reasonable doubt, we can have confidence, but if they're not giving the exculpatory, they can't make -- it undermines their ability to make a fair decision. so this is incredibly important and terribly vital to the
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operating of our criminal justice system. -- is based on the idea good and bad, and then make a fair decision, and then we have the burden beyond a reasonable doubt for the government, which is high, but not insurmountable. 2 million people in jail, where -- once the government withholds evidence and gets a conviction then we can no longer be confident. here's the thing about brady. how do you know that the government has exculpatory evidence?
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in most cases there might be exculpatory evidence, i agree with sid in, i think most prosecutors are upright and they do not -- this has been my experience -- they do not want a conviction for somebody without a fair hearing and without a true finding of innocence, but there are always people out there who want to get ahead by cutting the corners, and of course it makes it harder for the honest prosecutors, because the ones who cut corners get promoted, get the kudos, and that creates an incentive to cut corners, too. so it is exceedingly rare to find out that exculpatory evidence has been discovered. it's important to look at what
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happened in those cases and what the reaction is when the evidence is found. now in the ted stevens case, nobody has said this, but this is not a case where the justice department came forward to say, oops, we goofed, we had exculpatory evidence, we're going to present. an fbi agent blew the whistle. by pointing the fingers at justice department prosecutors and said they knowingly withheld evidence. this was a huge miscarriage of justice. senator stevens would never have been indicted, he would never have lost the election. just know doubt about it.
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just read the book. there's no dispute on this point. you would think they would run away and hide. in shame, they would say oh, my god, what did we do? if the attorney general at that point had decided to dismiss the indictment, i would be really impressed. but no, instead they said no big deal. they said no big deal. this was after -- this was found out after senator stevens was convicted. we are so sorry. they said, no, we want to hold on to the conviction. different attorney general. >> it doesn't matter. >> alternate that point it
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was unthinkable. there's no doubt about it. and i commend the attorney general for doing it earlier, but would have been far more impressed that if after the case was indicted, those who were responsible had been disciplined. nobody got fired over this. but given the enormity of what happened, this was hardly a slap on the risk. in the brown case, i'm not going to talk too much about it, because i want you to get the
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book and look at page 404. this is the evidence that was produced accidentally by the justice department, and it shows highlight, sydney didn't put that there. it was highlighting when the evidence was given to her. they knew about it. it was not ever a finding that there was no miss conduct. well, it wasn't as big a deanyway. they simply refused to reverse the convictions. it was not the case where they said this was okay. they said it was not prejudicial, what many of my colleagues do all the time. just one more minute to tell you
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about a case i had about ten years ago. ramirez lopez. what happened in that case, the government had ten or 12 winces who had been brought into the united states illegally what the government did, they deported most of those witnesses. and the case came to us -- this was a corporation and they started deporting witnesses in a criminal investigation, you would have them indicted. but the prosecutor said, fine, send them back before a lawyer is appointed for the defendant. two i my colleagues, fine
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colleagues who i dearly respect. affirmed the conviction, said it's perfectly -- the dissent was so blisters, so painful, so crucialating that the government then filed a petition for a hearing. usually it is the losing party that files a petition. and asked us to dismiss -- to reverse the conviction, to vacate our opinion, and sent it back so they could dismiss the indictment. i will take my two minutes to tell you the aftermath. ten years later i get the same case out of the same district, exactly the same thing happened. they deported the

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